Supreme Court: County Council not entitled to interlocutory injunctions removing Travellers from lands

About this case:

• Citation:
  [2022] IESC 2
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

It was held that the defendants’ caravans and mobile homes were “dwellings” for the purpose of Article 40.5 of the Constitution, which was not considered by the courts below. The court also considered Article 8 ECHR and stated that a proportionality analysis should have been undertaken by the Court of Appeal.

Background

The defendants were members of the Traveller community and had lived in a Traveller-specific housing development in Clare called Ashline. In November 2012, the defendants’ house was destroyed by a fire. The defendants resided in a rented house until September 2017, when they were required to vacate the house.

Subsequently, they occupied certain lands owned by the County Council. They purchased mobile homes which were initially placed on the road outside the Ashline site. The defendants later moved onto the Ashline site. The council obtained orders to remove the defendants but the defendants moved onto another site which was approximately 50 metres from Ashline.

In July 2018, the Council brought proceedings seeking both a permanent prohibitory injunction restraining the defendants from unlawfully placing their caravans and mobile homes on the new site and a permanent mandatory injunction to compel the removal of the vehicles from the lands.

In August 2018, the County Council sought interlocutory orders for these reliefs. The High Court granted the interlocutory orders in July 2019 and the decision was appealed to the Court of Appeal. The defendants’ main ground of appeal was that the caravans and mobile homes constituted “homes” within the meaning of Article 8 ECHR and were therefore protected under the Convention.

In dismissing the appeal, it was held that the ECHR did not impose a positive obligation to provide vacancies on official sites for the defendants. The Court of Appeal stated that there was no legal basis for the defendants to trespass on the Council’s property or use the lands for an unauthorised development. Finally, the court concluded that the defendants did not demonstrate that they had the “requisite close and continuous links” with the lands which was a prerequisite for establishing a Convention-recognised “home.” Accordingly, it was held that a fair question had not been raised by the defendants in opposing the injunctions.

Supreme Court

Delivering judgement in the case, Mr Justice Gerard Hogan began by noting that the orders obtained by the Council against the defendants were interlocutory in nature and made pursuant to section 160 of the Planning and Development Act 2000.

The court stated that the defendants’ exclusive reliance on Article 8 ECHR was “puzzling and problematic” insofar as no reference was made to Article 40.5 of the Constitution. It was noted that Article 8 only provided for “respect” for the home, while Article 40.5 provided for the “inviolability” of the dwelling. The court commented that the defendants were apparently seeking to “give a form direct effect to Article 8.”

The court stated that the Constitution remained the principal source for the protection of rights in Ireland and that the Oireachtas could not have treated the ECHR as a “substitute Constitution” under the ECHR Act 2003 (Gorry v. Minister for Justice and Equality [2020] IESC 55). Further, Mr Justice Hogan noted that, while a litigant was free to choose between the ECHR and the Constitution in emphasis of argument, a court should engage with both the relevant provision of the ECHR and the corresponding provision of the Constitution. The court stated: “Any other conclusion would mean, in effect, that the courts yielded a sort of constitutional primacy to the ECHR so that it thereby acquired a form of quasi-constitutional status which it has never been accorded.”

The court held that the defendants’ caravans and mobiles homes constituted “dwellings” for the purposes of Article 40.5, noting that there was a longstanding authority to this effect (The People (Attorney General) v. Hogan (1972) 1 Frewen 360). The Constitution did not require “close and continuous links” to a place for a dwelling to be established. As such, it was held that the Court of Appeal was incorrect to hold that there was no fair question to be tried on this issue.

Next, the court considered whether an arguable case was raised that the removal of the caravans would be disproportionate in the circumstances. It was held that, although the caravans were illegally placed on the lands, the provisions of Article 40.5 still applied to a lesser degree. It was held that the key issue was the extent that constitutional protections were diluted by virtue of the defendants’ trespass and disregard for planning laws.

The court considered Meath County Council v. Murray [2017] IESC 25 in great detail which outlines the correct approach in these cases. It was held that the general presumption remained in favour of the enforcement of planning laws and granting of orders pursuant to section 160.

The court also referred to ECHR jurisprudence which stated that the vulnerable position of Travellers meant that special consideration should be given to their needs and their different lifestyle. To this extent, there was a positive obligation on the State to facilitate their way of life. Further, it was held that the loss of a dwelling was an extreme interference with a person’s home and therefore a proportionality test should be applied (Winterstein v. France [2013] ECHR 984).

The court held that the Council had to show a particularly strong case because it was seeking mandatory interlocutory relief (Charleton v. Scriven [2019] IESC 28). It was also important to ensure that the least injustice was done when considering an injunction application (Okunade v Minister for Justice [2012] IESC 49).

A critical consideration was that the Council was a Housing Authority and had arguably failed in its duty to offer suitable accommodation to the defendants, particularly having regard to the mother’s medical needs (Dublin Corporation v. McGrath [2004] IEHC 45). Additionally, the vulnerable nature of the travelling community was important.

Applying the test in Merck, Sharpe & Dohme Ltd. v. Clonmel Chemicals Ltd. [2019] IESC 65, the court stated that an arguable case had been raised by the defendants having regard to the court’s previous conclusions. Considering the balance of convenience, the court stated that it would be inappropriate at this stage in the proceedings to render the defendants “effectively homeless.” The court emphasised it was not condoning illegal occupation of land, but could not ignore the marginalised status of the defendants.

Further, unlike the Murray case, there was no obvious and immediate threat to third parties or to environmental factors.

Conclusion

The Supreme Court overturned the Court of Appeal decision on the basis that the defendants had raised a fair question to be tried and that no proportionality assessment was undertaken to examine the impact of the injunctions. the court emphasised that the case should proceed speedily to a full hearing.